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The Rule Making Process

The Rule Making Process. Why Make A Rule?. We heard that the XYZ Clinic has one therapist who is supervising 50 aides! We also heard that the therapist only works 5 hours a week!.

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The Rule Making Process

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  1. The Rule Making Process

  2. Why Make A Rule? • We heard that the XYZ Clinic has one therapist who is supervising 50 aides! We also heard that the therapist only works 5 hours a week!

  3. Most Agencies are created by the State Legislature and are assigned specific powers and duties. Among these powers is the ability to promulgate rules. Laws enacted by the legislature are codified in the revised code. Rules written by agencies are codified in the administrative code.

  4. In General, each Board was created to fulfill some public protection mission or mandate. • This mandate often requires the development of rules which are designed to do one of the following: • Improve competence, • Clarify ambiguous sections of the law, • Define or outline administrative procedures or establish specific oversight requirements, or to • Establish fees.

  5. The Research Process • Board Members or members of the staff often use their resources to gather information. • Often members contact their national professional associations to assist them with identifying model practice language or model practice acts to assist them. • This research may also require investigating other state agencies to determine how similar issues have been addressed by other professional regulatory boards.

  6. The Decision Process • The Board generally reviews all of the researched information and decides which language most accurately addresses the issue at hand. • This process can be resolved in one meeting or it can take 2 years or more. • SUGGESTION: I recommend writing rationale statements in the board minutes so that people can remember why a particular course of action was, or was not taken!

  7. The Legal Process • After the language has been drafted, the Attorney General’s Office or the Agency’s legal counsel reviews the proposed language to determine if there are any major red flags or legal problems. • The Attorney General’s Office can also be helpful in making the language more effective. Attorney’s often pick up on legalistic ideas that licensed professionals may overlook.

  8. Most States require some type of public comment period or some type of public hearing. This process allows persons affected by the proposed rules to express their concerns and allow them input into the process. The Administrative Procedures Act/Due Process/and the Rule Making Process:

  9. The Agency Rule Review Process • Some states, like Ohio, require a Rule Validation Process. A rule may be invalidated for 1 of 4 reasons: • The agency does not have the statutory authority to promulgate the rule. • The rule violates the intent of the legislature. • The rule conflicts with another rule or part of a statute in the revised code. • The Rule does not contain a proper Fiscal Analysis.

  10. Finalizing the Rules • In most instances, the rules must be finalized after the legislative committee has given the agency the authority to implement the rules. In most instances the rules are assigned an effective date and codified. In Ohio, rules must be final filed with Joint Committee on Agency Rule Review, the Secretary of State’s, and the Legislative Services Commission.

  11. Overview

  12. The following states do not have a formal process for legislative review of administrative rules: California, Hawaii, Minnesota, Mississippi, Nebraska, New Jersey, New Mexico, Rhode Island, and Texas. This side-by-side was produced by staff at the National Conference of State Legislatures, using information from The Book of the States, 1998-1999 published by the Council of State Governments. If you have questions or comments, please contact Michael Bird at (202) 624-8686.

  13. Some States may required that effected persons be notified by mail. This may vary from state to state or agency to agency. Others Agencies may post changes on their Web-Sites or Place adds in their association’s newsletters or professional journals. Administrative Procedures Act and Public Notice Requirements

  14. State Legslative Review of Administrative Regulations Prepared bySL Staff as an attachment to thetestimony of New York State Senator Steve Saland before the United States Senate Governmental Affairs CommitteeApril 12, 1999

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